Obiter Issue Three 2022

Acknowledgement of Country

Acknowledgement of Country

Dictum Society would like to acknowledge the Woiworung and the Boonwurrung people of the Kulin nation, who are the Traditional owners of our University land.

We extend our acknowledgements to the traditional custodians of Australian land and pay our respects to their culture, and their Elders past, present and emerging.

We recognise that sovereignty has never been ceded, and pay our respects to the diversity of indigenous peoples , their communities and cultures, and the intrinsic connection to the land and waters as the Traditional Owners to Country.

Dear DReader ear Reader

Dear Reader,

The Obiter is a magazine that serves you a buffet of quality content. From 'Seasoned Artists' that know the legal world like the back of their hand to students like you sharing their perspective and experiences, our articles engage the audience in a conversation you would wish it never ceases. 'The Writer's Nook' is where you might find our writing competition of the issue with a topic almost as tantalising as the prize that is offered. Be sure to venture into it, if you thrive on competition!

For the many that are simply looking to kick back, relax, and tickle their brain with some legal brainteasers, keep an eye out for our 'Cross Laws Crossword', 'What's the Verdict, 'Word Wheel', and 'Legal Doodler' sections. They aim to entertain and challenge you.

I like to weave themes through the 2021 Obiter Issues and you will see this as you read through this magazine and more.

I hope you thoroughly enjoy the Obiter!

Sincerely, Malaika Nambiar

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THE INTRODUCTION

Dictum Society was established in 2012, and has successfully engaged and serviced a wide variety of external and internal stakeholders in this short time. We are a Society which aims to represent the diverse aspirations and attributes amongst our law students and improve their university experience.

We achieve this by hosting a combination of initiatives and events, ranging from careers, competitions, social events and education programs

Dictum Society is affiliated as a College Society through Victoria University’s Student Union (VUSU). This means that Dictum Society is the peak student representative body for Victoria University’s College of Law and Justice.

THE

THE INTRODUCTION OB

The Obiter is Dictum Society's official magazine. The magazine provides its readers with content that is fresh, stimulating, and diverse.

In 2021, the magazine aims to keep its readers on their toes.

From students to professors to legal legends, each issue passes the baton to one renowned law veteran who will be sharing valuable advice and riveting anecdotes in our 'Seasoned Artist' Series.

Our seasonal writing competitions, 'The Writer's Nook' series, offers captivating topics and exclusive prizes for the winners who are also featured in our following Issue.

You don't want to miss our 'Dictum Editorials' where the Committee expresses their creativity through a plethora of topics all of which aim to spark new conversations.

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Our content also caters for the lighthearted with our brainteaser puzzles and fun facts that are peppered throughout the magazine. Our newly introduced 'LOL: Laugh Out Law' column also aims to publish funny legal cases and narratives for the entertainment of our readers.

The Obiter Magazine is more than just a publication stuffed with articles It is a reflection of the innovation and tenacity that the Society and its people embody.

Deep-Dive into Maritime Law

Deep Dive into Maritime Law

Under international law, Australia has rights and responsibilities in relation to its adjacent waters, which are divided into maritime zones The main international agreement outlining these rights and responsibilities is the United Nations Convention on the Law of the Sea, or UNCLOS. UNCLOS defines the following maritime zones:

territorial sea contiguous zone exclusive economic zone continental shelf

The Commonwealth, the states and the Northern Territory have also come to an arrangement, called the 'Offshore Constitutional Settlement', in respect of Commonwealth, State and Northern Territory jurisdiction in the waters to the edge of the territorial sea.

Copyright can be owned by any of the following: By musicians, writers video and film makers, performers and it

gives automatic protection under Australian and International laws if you have ownership rights relating over your work. However, Copyright does not offer protection over ideas and styles as the work must be physical, material, or at least in digital form.

law/law

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Dive into Maritime Law

Dive into Maritime Law

In Australia, there are a series of pieces of legislation which regulate shipping. The most basic is the Admiralty Act 1988 (Cth) which defines the jurisdiction of the commonwealth of Australia in relation to shipping in her ports and territorial waters as well as the boundaries with international waters. The courts have power to deal with occurrences within the bounds of the Australian Territorial Waters The safety of Australian shipping is also of essential importances and the Australian Maritime Safety Authority Act 1990 (C’th) establishes the national authority which regulates the safety of shipping in Australian waters. Further legislation includes the Carriage of Goods by Sea Act 1991 (C’th) which regulates the way that ships are to load and unload at Australian ports and what cargo they can carry There is also a piece of the criminal law in Australia which is called the Crimes (Ships and Fixed Platforms) Act 1992 which creates a criminal jurisdiction for certain acts at see and on fixed platforms, particularly when it relates to the safety of these vessels or platforms.

This piece of legislation is also similar to the Crimes at Sea Act 2000 (C’th). Another aspect of the legal regulation of shipping is the regulation of imports and exports The Customs Act 1901 allows the customs authority to board and inspect shipping and remove any contraband substance arrest persons suspects of trafficking illegal weapons, drugs or other contraband.

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Dive into Maritime Law Dive into Maritime Law

Some of the other pieces of legislation which regulate the seas and shipping in Australia are the Historic Shipwrecks Act 1976 (C’th) which establishes a system of heritage preservation for shipwrecks which are perceived as having some historical significance Some of the legislation which has developed in order to give effect to the international treaties to which Australia has become a signatory include the Limitation of Liability for Maritime Claims Act 1989. The legislation which allows for the building of light houses and other navigational aid and the system of navigational indicators which are used in Australia is the Navigation Act 1912 (Cth). One of the more recent pieces of legislation which was introduced because of the possibility of the use of the technology of carbon sequestration was the Offshore Petroleum and Greenhouse Gas Storage Act 2006. Also, there is a system of compensation which was established under the Seafarers Rehabilitation and Compensation Act 1992 (C’th) for the compensation and rehabilitation of the people who had been injured at sea Some of the examples of legislation which has been used at state level to regulate the operation of shipping is the New South Wales Shipping Registration Act 1981 (Cth) and the Commercial Vessels Act 1979 (NSW) which is another piece of state legislation regarding shipping in the Waters of New South Wales and the use of motors, load lines and the need for some vessels to carry safety equipment which can be used in the case of an emergency

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Wall of Dictum

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rocrastination

Productivity

The Line of Distraction

The attention span of a goldfish.' A phrase I never understood until I started tracking a consistent pattern of getting distracted by the littlest of things, all while entertaining widely productive activities

Let me give you an example The other day, I sat down to figure out a research essay due in 43 hours, (because let's be real, the true genius only reveals itself when you are at the precipice of panic and hysterics, and is weighed down by a nearing deadline.

My first source of distraction was not the TV, I sat before, the bed that was calling me few metres away, or my phone which seemed to buzz so incessantly as though it were calling out to me. No! My first source of distraction, was 'aesthetics'. For my productivity in getting down a stellar essay hinged upon the aesthetics with which I wrote the title of my notes in my diary, 'Research Essay' After writing, rewriting, scrapping, and restarting, I decided pick up my phone to look into potential ideas for putting together notes of the highest order. Of course, as I did this, a notification

popped up on YouTube that a new video had been uploaded by 'How to Survive' titled as, 'How to survive a crocodile attack' (Spoiler alert: You cannot survive) It seemed important at that point to watch this with my utmost attention so I moved to the bed and under the blanket. Seven hours later I had 36 hours remaining for my essay because I fell asleep mid listening to my beloved 'Crocodile attack survival' video

Pomodoro Technique

Ultimately, when your actions are controlled or affected by bad habits or a reduced attention due to overstimulation and the sheer privilege of too many reasons to not be productive than to be productive, it is necessary to get down to the brass tacks of what gets you to the end goal i.e. your best productive self.

It is not surprising that many of us out here are going through a similar struggle, which was why it also did not take a lot of googling to stumble across the 'Pomodoro technique' For those of you who are not familiar with this concept, the Pomodoro technique

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Procrastination v PProductivity rocrastination v Productivity

works on a concept of rewarding small increments of unadulterated concentration and productivity Its recipe requires a task, a timeline, broken down into 25 minute chunks, followed by 5 minute intervals or Pomodoros!

It is important to set a timer for the 25 minute periods as well as the pomodoro periods as this technique relies upon the urgency that'll drive a person when they are being run down by a clock This way, you are not under the impression that you have an entire week, or day, or in my case 43 hours.

Personal Pomodoro Experience

Now I was not too convinced by this strategy when I read about the theoretical idea because I am personally an 'all or nothing' student (Not that I recommend this to others) wherein, I have either not completed my task at all, or I am 4 8 hours deep into my assignment completing it all at once especially if I am neck deep in having writer's flow coursing through my system So it was a bit hard for me to accept that I could exercise the level of patience required when limited to 25 minute increments of productivity once you begin said studies.

However, the Pomodoro technique proved itself to be a trusty manner of maximising productivity after the fourth increment for I began feeling less burnt out and more organised while working during those 25 minute periods.

What further helped was having fixed sources of entertainment or relaxation during the pomodoro periods I mean how do I completely an entire episode of The Office in 5 minutes really? My first few pomodoro periods were really spent in overwhelming excitement of what I could do during my duly earned pomodoro time. I mean realistically you should not be doing anything too stimulating at this time because its purpose is to give you a break to rewind before kickstarting again, but if you are anything like me your idea of such rewind may be watching a video for a quick laugh or catching up on messages with friends The point is, know your idea of rewinding and fix them prior to venturing into your pomodoro strategy for the day!

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DProductivity istraction v Productivity

Distraction v

Besides this technique there are always day to day strategies with less funky names to go by You could try any of the following to help yourself be less distracted and more proactive:

Eating well before you begin working on your task (but not too well for that may lead to a ninja nap that lasts a lifetime!) Putting my phone on 'Sleep' mode or better yet, handing my phone over to someone who would never give that phone back to before the designated time (aka my mom). You can substitute 'pomodoro' with incentives that do work for you Some times when I do heavy readings in large chunks I allocate candy for reaching certain paragraphs or chapters in my reading. Be wary though, you might just end up eating all that candy as you get exponentially productive When trying to understand, absorb, or revise concepts reading and calling out questions and answers out loud always help staying focussed and prove effective in wrap your head around your learning objectives. Drawing out simplified maps or dummy

points also prove to be very helpful when trying to stay attentive and the osmosis of learning continues the same! (I highly recommend the DUMMY POINTS tactic, for it really deters you from feeling overwhelmed by heavy hitting law concepts!!)

Hopefully in the case of Distractions v Productivity, the latter wins for you as well And if it doesn't give Pomodoro a try You might be pleasantly surprised!

FUN FACT (Actually not so fun!): Procrastination is derived from the negative feelings you may associate to certain tasks Such that a certain activity may make you feel stupid, insecure, or overwhelmed lets say by the idea of getting it right and perfect the very first time. This leads to a pattern of avoidance which develops into habitual procrastination!

Reducing your tasks to simple and understandable tasks may be exactly what you need to overcome procrastination and distraction in your studies.

An Observation

An Observation

I have been volunteering at a Community Legal Centre for two years as a family intervention order paralegal. As is stepped into court for the first time, my naive self felt like I was ready to conquer the legal world Or so I thought I soon discovered that the minute I felt like "I've got this” a client would ask a question which would completely threw me off my mark. Luckily for me, I had the support and mentorship of the CLC’s duty lawyers at every turn Ever encouraging and comforting, they soon became my role models Over the two years I have made a few observations, but one is worth mentioning. Working in law is often thankless. I was a year and a half into my role before a client actually thanked me for helping them. Up until that point, I did not notice that my clients never explicitly acknowledged my contribution To be clear, I don't go to work thinking about how many people will thank me for telling them something they are not yet willing to accept. But it is always reassuring to know that you might have helped in someway.

The truth is, talking to people day after day, repeating myself diminished the "conqueror the world" attitude I originally felt. It can get really depressing having to tell someone that their marriage is over, or that they may not see their children unless agreed to by the other party. So when a client looks at you sincerely and says

Thank You,

I am reminded and filled with the passion I once had.

By Anonymous

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Recovering RInnocence ecovering Innocence

Case of Adnan Syed

17 year old Adnan Syed saw a whole new life ahead of him when he was convicted for the brutal murder of Hae Min Lee who was Mr Syed's former girlfriend and a fellow senior at his high school. Adnan, faced 30 years of prison and had served 23 years of his punishment before the case against him was vacated by prosecutors as of October 2022 on the grounds of new evidence being found and the introduction of new suspects

Significant emphasis on the reason for Adnan's wrongful conviction befell upon the use of cell phone tower records in 1999, which could not have been reliable enough considering that it was newly emerging technology.

Additionally, inconsistent testimonies from eye witness Jay Wilds, who was a friend of Syed also indicated an irregular track. Adnan's alibi was also corroborated by a witness that may have changed the course of the trial if she had been able to testify in Court. For Asia Mcclain reinforced Adnan's claim of being at the library at the time of the murder.

Mr. Syed is now described as a free man, but the loss of 23 years can only be felt by a man who was innocent and yet suffered the punishment for a crime he did not commit.

Confirmation Bias

Confirmation bias revolves around the principle of building your understanding or decision on set beliefs and opinions, leading to the dismissal of information that is relevant to the issue and would not be disregarded otherwise by an unbiased eye

On many ocassions, confirmation bias has been prevalent in case investigations, Adnan Syed, in high school; Adnan on the day of acquittal

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D I C T U M S O C I E T Y Recovering RInnocence ecovering Innocence

which can be created by opinions on race, religion, gender, and other predominantly generalised factions. Media and public pressures of finding a culprit in volatile cases involving the loss of life can also push investigators to work the case based on a particular suspect as opposed to working the case based on the evidence and information presented and provided Adnan Syed was also a victim of such misrepresented investigation which ultimately led to an entire case being built upon Adnan's image of a muslim man.

Confirmation bias may well have prevented prosecutors from viewing factors such as Ms. Mclean's statement as it obstructed the narrative found most fitting in those circumstances according to investigators. A discrepancy that could have saved 23 years of depriving Syed of his freedom.

Missing case of Azaria Chamberlain

In Australian history, such biases have also trickled into the system A prime example being the case of Lindy and Michael Chamberlain. The parents of little Azaria were convicted for murder and being an accessory to the murder respectively, when Azaria disappeared near Ayers Rock. Mother, Lindy retained her innocence with her claim that a dingo had snatched her baby.

This case was an example of poor investigation and the existence of confirmation bias for vital evidence pertaining to dingo tracks, hair and blood sprays along with the nearby campers' observations which were not given significant notice as the investigators had already drawn the conclusion of the parents being the culprits. The purported signs of blood in the parent's car was actually sound proofing compound applied at the time of manufacture.

Lindy and Michael served 4 years in prison before new evidence was admitted to the trial indicating that in 1986 baby Azaria's matinee jacket was found half buried near a dingo den, alluding to the conclusion that Azaria was in fact taken by a dingo.

Lindy and Michael Chamberlain during trial for baby Azaria's missing/murder trial

Recovering RInnocence ecovering Innocence

Presumption of Innocence

When we regard case history with wrongful convictions dictating its trajectory, we look at the term, 'presumption of innocence' in a introspective manner. Because biases such as what we have established among other biased externalities ultimately compromise this fundamental human right to be treated as an innocent party in the eyes of the law until proven otherwise. The purpose of which is to ensure a fair and equal trial is given to each and every person

In the pre-trial stage as well, investigators should maintain this standard of practice to ensure that value time, effort, and resources are not spent to deduce a pre-decided answer, but rather used to answer questions along the way and organically conclude the investigation with a proposed culprit.

Importance of Protecting Innocence

The reason why the protection and restoration of innocence is so vital to the fundamentals of society is because punishing an innocent party and compromising their freedom and life may well be a crime committed against that person If the priority shifts to punishing any culprit if suspected enough, then what the law would serve its people is a scapegoat rather than justice, and can only be a considered a crime against humanity

The conclusion derived is not to point fingers at prosecutorial discrepancies created by tunnel vision, biases, and other such factors, especially since there are many other considerations that can lead to a wrongful conviction or the jeopardisation of innocence, but the idea is to hold an equal standard among law makers and enforcers to satiate the requirement of justice without compromising the integrity of equitable procedures

D I C T U M S O C I E T Y

Malaika Nambiar

Wall of Dictum

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Cross LawsCross Laws

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And the Verdict is...

And the Verdict is...

H E L D

There should not be an exemption for non‑profit organizations. While non‑profit organizations perform needed services on behalf of the community as a whole, the Foundation’s institution, however meritorious, put the respondent in the intimate care of C and in a very real sense enhanced the risk of his being abused. From his perspective, it is fair that as between him and the institution that enhanced the risk, the institution should bear legal responsibility for his abuse and the harm that befell him. It may also deter other incidents of sexual abuse by motivating charitable organizations entrusted with the care of children to take not only such precautions as the law of negligence requires, but all possible precautions to ensure that their children are not sexually abused.

Yes, because the responsibilities given to Curry so greatly enhanced the risk Held the Salmond test applied, in relation to: “(1) acts authorized by the employer or (2) acts which are not authorized by the employer, but are so connected to authorized acts that they may be considered “modes” of acts authorized by the employer.”

case summary derived from https://www.lawteacher.net/cases/malone v laskey.php

Cross Laws Solutions Cross Laws Solutions

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Do the Crime, Do the Maritime Do the Crime, Do the Maritime

I see the sea, for what she is. A thunderous soul, a heart of gold With tales to tell and secrets to keep. With life she brings and puts to sleep.

I see a Sailor sail with sails With charcoal holes and broken rails. His crew distraught swayed in dismay The shipment boxes in disarray

I see a Contract black and white With clauses telling wrong and right The Sailor said the ship collapsed. With shipment boxes underwater and trapped

I see a Ship that shipped, shipped boxes. Or meant to right before chaos stopped it With no delivery and a run down vessel The Sailor was all ready to tussle.

I see a Company that sought a Ship And sent the Sailor on a business trip. With no shipping, no Ship, no Sailor, no trip, The company had a Contract to rip

I see a man who prided his sailing For he sailed to ship boxes, never failing He saw a Company with liability of law So he served them with papers they couldn't ignore.

I see the Law that lays its life To slice in parts the wrong and right. So we trust the laws of maritime, Shall claim its victim, criminal, and crime

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Do the Crime, Do the Maritime Do the Crime, Do the Maritime

I see a Sailor with a broken ship. A minor crack became a major blip The Company ship had wood so stale The Sailor said it was bound to fail.

The Sailor declared in Court that day How the Company dismissed his worries before he went away He said the Ship was theirs to fix Yet they had him set sail with their words and tricks.

I see a Contract bound by law. Airtight by nature yet with a flaw. For the Sailor said his crew was owed their money

While the Company guffawed in Court, finding this funny

The Court looked at the Contract paper To pass their judgement a little later For the Sailor was right to call the breach His claim for damages was not a reach.

I see the Court, that sees the truth, A vindicated Sailor and a Contract to uproot. For the Company's breach the law did chime

For if you do the crime, you do the maritime by Malaika Nambiar

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